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You Got Our Judge Recused? Fine, We'll Get Your Judge Recused

Kramer Levin partners Paul Andre and Lisa Kobialka won a $2.75 billion patent infringement judgment in 2020, only to lose it on appeal over a ticky-tack judicial conflict of interest. Now Andre has won a measure of payback at the Patent Trial and Appeal Board.

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Meta Competition Leader Lands at Covington as Big Tech Confronts 'Historic' Antitrust Scrutiny

Kate Patchen is the former chief of the San Francisco office of the DOJ's Antitrust Division, and anticipates soon moving to the firm's San Francisco office.

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Ex-Proskauer COO Was Headed for Paul Hastings Before Trade Secrets Lawsuit

A Paul Hastings representative said Friday that the firm now has no plans to hire Jonathan O'Brien, who recently returned to the U.S. from an overseas vacation.

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New Federal Law Bans NDAs in Sexual Harassment Cases

Employers often have an interest in ensuring that details of the workplace do not get out into the general public. Accordingly, they often require employees and other business associates to sign nondisclosure agreements (NDAs) as a condition of working at or with the company. Employees, who want a job, usually do not feel as if they are in a position to say no when their employer makes this request, although some states have outlawed NDAs as a condition of employment.

However, public policy also has an interest in having employees’ voices heard under certain circumstances. With this in mind, Congress has passed a new federal law that will automatically invalidate NDAs in the case of sexual harassment or misconduct at work. Victims will be able to speak out about their experiences, notwithstanding any NDA that they have already signed. And, companies will be prohibited from suing employees who go to the media with their stories under the terms of an NDA.

Non-Disclosure Agreements Are Not Always Favored Legally

Courts will often find a reason to not enforce an NDA. While NDAs are a common tool that employers use to maintain confidentiality about designated topics, in some cases, courts will try to find a way to allow employees to speak, especially when their NDA has harmed their right to earn a living. Nonetheless, there are also situations in which a company has a valid interest in an NDA, especially when trade secrets and corporate processes are involved.

There are times when an employee feels the need to speak out. This is often the case when there are allegations of sexual harassment or misconduct in the workplace. NDAs have been used to prevent employees from speaking out about sexual harassment in the workplace. The #MeToo movement highlighted this issue.

The Speak Out Act Restricts How NDAs Can Be Enforced

Congress recently passed the Speak Out Act, which applies to both non-disclosure and non-disparagement agreements. The legislation was signed into law by President Biden on December 7, 2022. The heart of the legislation is that:

“No nondisclosure clause or nondisparagement clause agreed to before the dispute arises shall be judicially enforceable in instances in which conduct is alleged to have violated Federal, Tribal, or State law.”

The Law Retroactively Invalidates NDAs in Certain Circumstances

The Speak Out Act applies retroactively to all NDAs that were already signed prior to the passage of the legislation. The law makes it illegal to enforce an NDA that would prevent a sexual harassment or assault victim from speaking out about their allegations. The law makes it clear that it applies to any claim that is filed after the date that the bill was signed into law, regardless of when the NDA was dated.

Further, the Speak Out Act does not prevent a state from passing even more restrictive laws regarding the use of NDAs.

Blanket NDAs Are Sometimes Problematic

The legislation does not apply to an NDA that was agreed to after the harassment occurred. Employers may have an interest in keeping certain conduct secret, and they may require that their employees sign an NDA when they settle a sexual harassment claim. In this situation, an employee has the ability to specifically consider whether they want to sign the agreement in light of the behavior that has already occurred and the compensation they’re receiving as part of the settlement. However, the prohibition would continue to apply in the event that the employee signed a blanket NDA before the harassment occurred.

From an employer’s standpoint, the Speak Out Act is another blow against the certainty NDAs can bring. If an employer has required an employee to sign an NDA as a condition of employment, they should not expect that it will always be upheld in court. While employees may be afraid of the potential consequences of violating an NDA, they may have a chance to invalidate theirs if they challenge it in court. Alternatively, they may purposely violate the NDA and dare the employer to file suit.

Employers Can Still Use Non-Disclosure Clauses in Settlement Agreements

Employers who settle sexual harassment allegations should consider the use of an NDA in the settlement agreement if it is consistent with state and federal law. Some states do not allow this, though Texas does not prohibit an NDA that is a part of a contract. Although the alleged victim has a right to speak, the two parties also have the freedom to enter into a contract with each other. For now, Texas law only holds that two parties cannot conceal a public hazard in a settlement agreement.

Companies should consult a labor and employment attorney at the first moment an employee alleges they were the victim of sexual harassment. Texas has recently enacted robust laws concerning sexual harassment in the workplace in the wake of the #MeToo movement.

Although a company wants to protect its reputation, there are things it can do that could make its situation worse. If a company is perceived to be covering something up, the public could react far more harshly should details come to light. This is not to say that companies cannot do everything in their power to secure confidentiality, especially if they are paying out money in a settlement agreement. The company has its own legal rights to protect, notwithstanding any allegations made against it.

The post New Federal Law Bans NDAs in Sexual Harassment Cases appeared first on MehaffyWeber.

(Originally posted by MehaffyWeber, P.C.)
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Weil Turns to New Leadership of DC Office

Chantale Fiebig and Jeff White will succeed Steven Tyrrell after his 10-year run.

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Goodwin's Layoffs Spotlight Balancing Act Between Associate and Partner Preferences

More details are emerging about the number of people laid off, as well as the firm's rapid hiring in the last few years.

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U.S. $3 Billion Military Package to Ukraine Looks to Change Battlefield Dynamics

With the war in Ukraine at a critical point, everything has to be done to help Ukrainians continue to resist Russian aggression, the deputy assistant secretary of defense for Russia, Ukraine and Eurasia said.
(Originally posted by Jim Garamone)
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Davis v. JD Minerals: another fixed vs floating royalty dispute

Last month the El Paso Court of Appeals issued its opinion in a long-running dispute over royalties on a section of land in Upton County. Davis et al. v. COG Operating, LLC, et al., No. 08-20-00205-CV. The court addressed several issues, one of which was the construction of a 1939 deed that reserved a royalty interest described as “one-fourth of the 1/8 royalty usually reserved by and to be paid to the land owner in event of execution of oil and gas leases, so that 1/4 of the 1/8 royalty to be paid to us, our heirs or assigns, if, as and when produced from the above described land ….” The court concluded that this was a “floating” royalty equal to 1/4th of the royalty reserved in the lease, not a fixed 1/4 of 1/8 royalty. This appears to be the correct result based on other recent cases construing similar language.

I have a bone to pick, however, with the language in the opinion describing the royalty reserved. To be fair, other courts have made the same error, and the same error was made by the appellants in their brief. The court concluded that the grantors reserved “a floating, 1/4 NPRI in Section 45.” A 1/4 NPRI is a 1/4th royalty interest, not 1/4th of the royalty reserved in the lease. A 1/4th royalty is equivalent to one out of every four barrels produced. One-fourth of the royalty under a lease reserving a 1/4th royalty is 1/4 of 1/4, or 1/16 royalty interest, not a 1/4th NPRI. Clearly, in using the term “floating, 1/4 NPRI” the court meant to conclude that the deed reserved 1/4th of the royalty reserved in any future lease. But referring to it as a 1/4 NPRI is confusing.

(Originally posted by John McFarland)
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Don't Be Fooled by the Crypto Crash: Blockchain Still Matters For Lawyers

Cryptocurrency's recent woes have given blockchain a bit of a black eye, but in this episode, Michael Kasdan, partner in the IP Group and co-chair of the Blockchain & Digital Assets Group at Wiggin and Dana in New York City, cuts through the hype to explain exactly why the technology still matters for lawyers.

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McDonald's Franchisee Accused of Ignoring Widespread Sexual Harassment to Pay Nearly $2M

"Employers should be mindful of the demographics of their workforce, including whether employees may be more vulnerable to being targeted because of their age," said Michael Mendoza, director of the EEOC's Las Vegas office.

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Class Action Claims Jeep Hybrid Owners Paid for Electric Options They Didn't Get

Plaintiffs say their vehicles have shown a pattern of frequently going into "fuel and oil refresh mode," or FORM, a state in which they can't run on electricity only.

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Texas Bar Journal Must-Reads for January

The Texas Bar Journal starts the new year with its water law issue, priming readers on the latest in Texas water law, issues centering on supply, and meeting growth in demand. The January issue also sees the conclusion of the Texas grievance series. Take a look online and don’t forget to catch up on Movers and Shakers, Disciplinary Actions, and Memorials.

When in Drought
Demand and constraints on Texas’ water supplies.
Written by Russell Johnson and Lecelle Clarke

Natural Resources
A look at developments in Texas water law.
Written by Marisa Perales

Strategic Planning
Texas water law evolves to meet rapid growth in demand.
Written by Michael A. Gershon and Nathan E. Vassar

What Texas Lawyers Need to Know About the Texas Grievance Process
Part three: avoiding common violations.
Written by Michael S. Truesdale and Seana Willing

(Originally posted by Eric Quitugua)
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Lawyer Hit With $5,000 Sanction for 'Lengthy Boiler-Plate' Filings and 'Troubling History'

The attorney "simply does not have any remaining credibility with this court, or likely almost any other court that he has litigated before in recent years," Senior U.S. District Judge Noel Hillman wrote.

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Hours Before Statute Would Have Run, Capitol Police Officer's Estate Sues Trump for Wrongful Death

"We're now a player at the table to help influence the judicial decision making," said Graza's attorney Mark Zaid.

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US News Ranking Methodology Changes Prompt Another Law School to Pull Out

The new rankings methodology announced earlier this week by U.S. News "fails to address many of the most fundamental flaws with its ranking system and, in many ways, compounds them," UC Law SF Chancellor and Dean David Faigman wrote in a three-page statement.

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New Privacy Lawsuits Hit TikTok: 'They're Collecting and Building a Database.'

Attorneys have alleged in at least six new class actions that TikTok has inserted JavaScript code into websites of third parties its users accessed through its app.

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Ukraine Troops to Get Bradley Fighting Vehicles

The Bradley fighting vehicles are part of a larger shipment of equipment to Ukraine that will be announced later, Pentagon Press Secretary Air Force Brig. Gen. Pat Ryder said.
(Originally posted by Jim Garamone)
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DOD Begins Implementing Naming Commission Recommendations

The Naming Commission process ended and the names of bases, posts, ships, streets and more named after Confederate soldiers will change.
(Originally posted by Jim Garamone)
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DOD CTIP PMO Prevents Human Trafficking Through Innovation and Website Enhancements

Over the past year, the Defense Department revitalized the Combating Trafficking in Persons website and launched several new resources and tools with a multifaceted approach to combat trafficking in persons.
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AG James Sues Celsius Network Founder for Allegedly Defrauding Thousands of Cryptocurrency Investors

Celsius was once among the largest lenders of digital assets; it was forced into bankruptcy in July, facing more than 100,000 creditors.

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